CORRECTION ORDER
ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997
This Order corrects the original Decision ADJ-00052912 issued on 02/10/2024 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052912
Parties:
| Complainant | Respondent |
Parties | Maamar Boudene | Superior Group IRL Limited |
Representatives | Self-represented | Mr Wilkinson |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00064299-001 | 25/06/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00065195-001 | 04/08/2024 |
Date of Adjudication Hearing: 18/09/2024
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard and to present any evidence relevant to the complaints. The hearing was a remote hearing. It was attended by the complainant, Mr Boudene, and a representative of the respondent, Mr Wilkinson. The complainant nor the respondent representative gave evidence under oath or affirmation.
After the original decision issued, the complainant applied to have the name of the respondent company amended from Superior Group to Superior Group IRL Limited. I am satisfied that I have the authority to amend the respondent name under Section 39 of the Organisation of Working Time Act 1997. The respondent was not prejudiced in any way as their representative attended and participated in the hearing as the complainant’s employer.
Background:
The complainant submitted two complaints under The Payment of Wages Act. The second complaint refers to unpaid holiday pay along with unpaid wages. The complaint is that he undertook work for the respondent from 27th November 2023 up to 7th March 2024 and was not paid. He had one week’s holidays from 7th January to 15th January 2024. He claims that he worked in various locations including Larne, Northern Ireland from 15th January 2024 to 7th March 2024. |
Summary of Complainant’s Case:
The complainant’s case is that he was employed from 27th November 2023. He said he left the employment on 7th March 2024 as he had received no pay up to that date. During this time, he took one week’s holidays. He outlined the work he carried out. He left the accommodation in Larne provided by Mr Wilkinson, on 7th March 2024. |
Summary of Respondent’s Case:
The respondent representative accepted the complainant was due a payment for security work carried out from 16th December 2023 to 7th January 2024. He calculated the pay due as €2,386.50. He tried to make this payment to the complainant at the time. As the complainant did not provide bank details, he could not make the payment. Over the initial two weeks in November 2023, he said the complainant was not in employment. He accompanied another employee to ascertain whether he had the appropriate skills to be trained up as a CCTV engineer. As he did not have these skills, he was offered and accepted work in a security role. Apart from the security work, the respondent’s position is that there were no further wages due to the complainant. He said he assisted him on a personal level from 15th January 2024 by providing accommodation in Larne. He denies the complainant was working for the respondent company from 15th January 2024 to 7th March 2024. |
Findings and Conclusions:
Law Section 5(1) of the Payment of Wages Act 1991 (“the 1991 Act”) provides that an employer shall not make a deduction from the wages of an employee unless the deduction is required or authorised to be made by virtue of any statute or term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or the employee has given his prior consent in writing to it. The 1991 Act envisages two situations with respect to a deduction. The first is where the employee receives less wages than they are due, the second is where they receive no wages at all. Section 5(6) of the 1991 Act provides: “(a) Where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.” Section 6(1) of the 1991 Act provides: “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding— the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that— (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.” The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55, outlined that when considering a complaint under the 1991 Act, it must first be established the wages which were properly payable before considering whether a deduction had been made. Under section 41 (8) of the Workplace Relations Act 2015, an Adjudication Officer cannot entertain a complaint unless it is made within 6-months of a breach of the Act. The complainant did not show reasonable cause as to why he could not submit the complaint within the timeframe. The relevant period is from 26th December 2023 up to 7th March 2024 when the complainant left the accommodation provided. Findings The evidence from both parties on these complaints are in conflict. Therefore, the hearing consisted of establishing the employment history between the parties. Initial Training/Induction Period The initial contentious period from 27th November 2023 to 15th December 2023 on whether the complainant was employed is outside the relevant six-months to make a complaint. Therefore, in accordance with the Act, I find that there were no wages or holidays payments properly payable from 27th November 2023 to 15th December 2023. Security Work The respondent representative accepts that €2386.50 is properly payable for work carried out by the complainant from 16th December 2023 up to 7th January 20024. The responded said he tried to pay the wages and could not do so as the complainant did not provide bank details when requested. I decide that wages of €2386.50 are properly payable for the security work carried out. Work in Larne It is contested by the respondent representative that the complainant was employed from 15th January 2024 to 7th March 2024. Due to this conflict in evidence, I requested the parties to submit any further evidence on the employment relationship over this period. There was no relevant evidence submitted by the complainant other than his earlier submission stating he had a key for the Larne office. The respondent representative did not provide any evidence or records to support their contention that the complainant only worked from 16th December 2023 to 7th January 20024. The assertion that the complainant had a key to the office was not contested by the respondent representative. Furthermore, there was no evidence submitted to show that the employment relationship had ended on or after 7th January 2024. If this was the end date of employment, one would expect some records from the respondent company to this effect. For the reasons outlined, I find that the complainant was still in employment from 7th January 2024 up to 7th March 2024. Based on a 39-hour week, at the minimum wage, and a 39-hour week, for 7-weeks (excluding the weeks holidays from 7th to 15th January), I calculate the wages due as €3,467.10. Therefore, the total wages properly payable are €5,853.60. Accrued Leave To ascertain the statutory leave due, I assessed this on the time worked and wages due from 16th December 2023. Wages as defined under the Act includes holidays. I decide the complaint on payment for accrued leave is well founded. As the complainant had taken one-weeks unpaid holidays and as he accrued holidays up to 7th March 2024, I calculate that he was due wages in lieu of accrued leave amounting to €468.29. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00064299-001- Payment of Wages Complaint I decide the complaint is well founded. The respondent should pay the complainant wages properly payable of €5,853.60 CA-00065195-001- Wages in Lieu of Accrued Leave Complaint I decide the complaint is well founded. The respondent should pay the complaint wages in lieu of accrued leave amounting to €468.29. |
Dated: 02/10/2024
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Key Words:
Payment of Wages |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052912
Parties:
| Complainant | Respondent |
Parties | Maamar Boudene | Superior Group |
Representatives | Self-represented | Mr Wilkinson |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00064299-001 | 25/06/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00065195-001 | 04/08/2024 |
Date of Adjudication Hearing: 18/09/2024
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard and to present any evidence relevant to the complaints. The hearing was a remote hearing. It was attended by the complainant, Mr Boudene, and a representative of the respondent, Mr Wilkinson. The complainant nor the respondent representative gave evidence under oath or affirmation.
Background:
The complainant submitted two complaints under The Payment of Wages Act. The second complaint refers to unpaid holiday pay along with unpaid wages. The complaint is that he undertook work for the respondent from 27th November 2023 up to 7th March 2024 and was not paid. He had one week’s holidays from 7th January to 15th January 2024. He claims that he worked in various locations including Larne, Northern Ireland from 15th January 2024 to 7th March 2024. |
Summary of Complainant’s Case:
The complainant’s case is that he was employed from 27th November 2023. He said he left the employment on 7th March 2024 as he had received no pay up to that date. During this time, he took one week’s holidays. He outlined the work he carried out. He left the accommodation in Larne provided by Mr Wilkinson, on 7th March 2024. |
Summary of Respondent’s Case:
The respondent representative accepted the complainant was due a payment for security work carried out from 16th December 2023 to 7th January 2024. He calculated the pay due as €2,386.50. He tried to make this payment to the complainant at the time. As the complainant did not provide bank details, he could not make the payment. Over the initial two weeks in November 2023, he said the complainant was not in employment. He accompanied another employee to ascertain whether he had the appropriate skills to be trained up as a CCTV engineer. As he did not have these skills, he was offered and accepted work in a security role. Apart from the security work, the respondent’s position is that there were no further wages due to the complainant. He said he assisted him on a personal level from 15th January 2024 by providing accommodation in Larne. He denies the complainant was working for the respondent company from 15th January 2024 to 7th March 2024. |
Findings and Conclusions:
Law Section 5(1) of the Payment of Wages Act 1991 (“the 1991 Act”) provides that an employer shall not make a deduction from the wages of an employee unless the deduction is required or authorised to be made by virtue of any statute or term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or the employee has given his prior consent in writing to it. The 1991 Act envisages two situations with respect to a deduction. The first is where the employee receives less wages than they are due, the second is where they receive no wages at all. Section 5(6) of the 1991 Act provides: “(a) Where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.” Section 6(1) of the 1991 Act provides: “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding— the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that— (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.” The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55, outlined that when considering a complaint under the 1991 Act, it must first be established the wages which were properly payable before considering whether a deduction had been made. Under section 41 (8) of the Workplace Relations Act 2015, an Adjudication Officer cannot entertain a complaint unless it is made within 6-months of a breach of the Act. The complainant did not show reasonable cause as to why he could not submit the complaint within the timeframe. The relevant period is from 26th December 2023 up to 7th March 2024 when the complainant left the accommodation provided. Findings The evidence from both parties on these complaints are in conflict. Therefore, the hearing consisted of establishing the employment history between the parties. Initial Training/Induction Period The initial contentious period from 27th November 2023 to 15th December 2023 on whether the complainant was employed is outside the relevant six-months to make a complaint. Therefore, in accordance with the Act, I find that there were no wages or holidays payments properly payable from 27th November 2023 to 15th December 2023. Security Work The respondent representative accepts that €2386.50 is properly payable for work carried out by the complainant from 16th December 2023 up to 7th January 20024. The responded said he tried to pay the wages and could not do so as the complainant did not provide bank details when requested. I decide that wages of €2386.50 are properly payable for the security work carried out. Work in Larne It is contested by the respondent representative that the complainant was employed from 15th January 2024 to 7th March 2024. Due to this conflict in evidence, I requested the parties to submit any further evidence on the employment relationship over this period. There was no relevant evidence submitted by the complainant other than his earlier submission stating he had a key for the Larne office. The respondent representative did not provide any evidence or records to support their contention that the complainant only worked from 16th December 2023 to 7th January 20024. The assertion that the complainant had a key to the office was not contested by the respondent representative. Furthermore, there was no evidence submitted to show that the employment relationship had ended on or after 7th January 2024. If this was the end date of employment, one would expect some records from the respondent company to this effect. For the reasons outlined, I find that the complainant was still in employment from 7th January 2024 up to 7th March 2024. Based on a 39-hour week, at the minimum wage, and a 39-hour week, for 7-weeks (excluding the weeks holidays from 7th to 15th January), I calculate the wages due as €3,467.10. Therefore, the total wages properly payable are €5,853.60. Accrued Leave To ascertain the statutory leave due, I assessed this on the time worked and wages due from 16th December 2023. Wages as defined under the Act includes holidays. I decide the complaint on payment for accrued leave is well founded. As the complainant had taken one-weeks unpaid holidays and as he accrued holidays up to 7th March 2024, I calculate that he was due wages in lieu of accrued leave amounting to €468.29. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00064299-001- Payment of Wages Complaint I decide the complaint is well founded. The respondent should pay the complainant wages properly payable of €5,853.60 CA-00065195-001- Wages in Lieu of Accrued Leave Complaint I decide the complaint is well founded. The respondent should pay the complaint wages in lieu of accrued leave amounting to €468.29. |
Dated: 02/10/2024
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Key Words:
Payment of Wages |